Mitchell v. Williamson

• Decision Date: 20 November 1956
• Docket Number: No. 36968,36968
• Citation: 304 P.2d 314
• Parties: C. D. MITCHELL, Administrator with Will Annexed of the Estate of W. A. Graham, Plaintiff in Error, v. Mac Q. WILLIAMSON, John O. Baker and Earl Ward, Trustees of the W. A. Graham Public Improvements Trust Estate, Defendants In Error.
• Court: Oklahoma Supreme Court

Page 314

304 P.2d 314

1956 OK 304

C. D. MITCHELL, Administrator with Will Annexed of the Estate of W. A. Graham, Plaintiff in Error, v. Mac Q. WILLIAMSON, John O. Baker and Earl Ward, Trustees of

the W. A. Graham Public Improvements Trust Estate,

Defendants In Error.

No. 36968.

Supreme Court of Oklahoma.

Nov. 20, 1956.

Syllabus by the Court.

1. A distributee named in a final decree of distribution entered by the appropriate county court is expressly authorized by 58 O.S.1951 § 632, to sue the executor or administrator to compel such executor or administrator to deliver to such distributee the property distributed by such final decree of distribution.

2. Counties and cities are political subdivisions of the state, and the constitutional provisions against laws which impair vested rights do not apply to such political subdivisions as against the state.

3. Before a party can assail the constitutionality of a statute, he must be affected or injured by its enforcement.

4. Where a judgment is rendered under a statute which may be unconstitutional, by a court having jurisdiction to determine the validity or invalidity thereof, and the question is not raised, nor the invalidity of the law asserted, a party to the action is precluded, under the rule of res judicata, from thereafter asserting the invalidity of the law to avoid such judgment, even though it be subsequently declared unconstitutional. In such a case the rights are vested under a valid judgment and not under the statute.

5. House Bill No. 883 of the 1953 Legislature, 60 O.S.Supp.1953 §§ 381-397, relating to gifts, testamentary and otherwise, to the State of Oklahoma, counties, cities, towns and school districts therein, does not violate Article 5, § 55, of the Constitution of the State of Oklahoma, nor does it provide a gift to public officers upon their retirement in violation of Article 5, § 47 of such constitution.

Appeal from the District Court of Mayes County; Josh L. Evans, Judge.

Action by plaintiff distributees against defendant administrators to enforce county court's final decree of distribution. From a judgment overruling the demurrer of one defendant to plaintiffs' petition and entering judgment as prayed for in said petition, said defendant appeals. Affirmed.

Creekmore Wallace, Pryor, and Thomas A. Wallace, Tulsa, for plaintiff in error.

A. C. Wallace, John R. Wallace and Ben T. Owens, Miami Okl., for defendants in error.

Mac Q. Williamson, Atty. Gen., James P. Garrett, Asst. Atty. Gen., Charles E. Dierker, and Curtis P. Harris, Special Counsel, Oklahoma City, for Governor of State of Oklahoma, and on behalf of the State of Oklahoma, amici curiae.

Jack L. Freeman, Pryor, on behalf of City of Pryor and Mayes County.

WILLIAMS, Vice Chief Justice.

This action was brought by Mac Q. Williamson, Earl Ward and John Q. Baker, Trustees of the W. A. Graham Public Improvements Trust Estate, hereinafter referred to as plaintiffs, against C. D. Mitchell, administrator of the W. A. Graham Estate, and others, hereinafter referred to as defendants, to recover that portion of the W. A. Graham Estate ordered distributed to them by the Final Order and Decree of Distribution entered by the County Court of Mayes County in said estate on April 7, 1954, more than a year prior to the bringing of this action.

Defendant Mitchell demurred to plaintiff's petition and upon the demurrer being overruled, elected to stand upon his demurrer and refused to plead further. The court thereupon entered judgment for plaintiffs and against said defendant, from which said defendant has perfected this appeal.

As his first proposition of error, defendant Mitchell contends that the District Court of Mayes County is without jurisdiction over the subject matter of this action because probate proceedings are pending in the County Court of Mayes County on the estate involved in this action. We find no merit in such contention. Plaintiffs' petition alleges, insofar as is material to this appeal, that W. A. Graham, a resident of Pryor, Mayes County, Oklahoma, died testate on March 28, 1952; that the last will and testament of W. A. Graham, deceased, was duly admitted to probate in the County Court of Mayes County on April 16, 1952; that on March 2, 1954, the estate being fully administered upon and being ready to be distributed, the administrators, one of whom was defendant Mitchell, filed their final account and petition for distribution; that proper statutory notice was given that such final account and petition for distribution would be heard by the court on April 7, 1954; that on April 7, 1954, defendant Mitchell was present in person and by counsel and at that time the county court entered a final order and decree of distribution approving the final account of the administrators and ordering the estate of W. A. Graham, deceased, distributed as requested by the administrators; that said final order and decree of distribution, after providing for the distribution of various specific bequests and payment of fees, provided for the distribution of the residuary estate of W. A. Graham, deceased, to the plaintiffs, as Trustees of the W. A. Graham Public Improvements Trust Estate, under authority of 60 O.S.Supp.1953 § 381 et seq.; that no appeal was perfected by anyone from said final order and decree of distribution and the same has become final and is binding upon all the parties thereto; that defendant Mitchell has failed and refused to deliver the residuary estate so distributed to plaintiffs. Such allegations are admitted by defendant's demurrer and for the purpose of this appeal must be taken as true. Such an action is specifically authorized by 58 O.S.1951 § 632, which provides:

'In the order or decree, the court must name the persons and the proportions or parts to which each shall be entitled, and such persons may demand, sue for and recover their respective shares from the executor or administrator, or any person having the same in possession. Such order or decree is conclusive as to the rights of heirs, legatees or devisees, subject only to be reversed, set aside, or modified on appeal.' (Emphasis added.)

While this court has apparently never had occasion to construe the emphasized portion of the above quoted statute, it does not appear to be ambiguous and there could be no doubt as to its meaning. The Supreme Court of California has construed an almost identical statute to authorize a distributee under a final order of distribution to sue the executor or administrator for the property ordered distributed thereby. St. Mary's Hospital v. Perry, 152 Cal. 338, 92 P. 864; Le Mesnager v. Variel, 144 Cal. 463, 77 P. 988; Melone v. Davis, 67 Cal. 279, 7 P. 703.

We therefore conclude that the district court had jurisdiction of the instant action by virtue of the provisions of 58 O.S.1951 § 632, supra.

As his second proposition defendant contends that an act of the legislature which attempts to take away property rights retrospectively which have vested under the will of testator is unconstitutional because it violates the due process clause of the Federal Constitution, U.S.Const. Amend. 14, and the Constitution of the State of Oklahoma. Such contention is, as an abstract proposition of law, a generally correct statement, but as applied to the case at bar it is wholly without merit. The Act to which defendant refers is House Bill No. 883 of the Twenty-Fourth (1953) Oklahoma Legislature, now found at 60 O.S.Supp.1953 § 381 et seq. Such Act relates to gifts, testamentary and otherwise, to the State of Oklahoma, counties, cities, towns and school districts therein; provides for the construction of instruments by which such gifts are made, for the acceptance of such gifts, and for the use, management, control and disposition of the property involved in such gifts. It was by virtue of the provisions of such Act that the residuary estate of W. A. Graham, deceased, was ordered distributed to plaintiffs as trustees. Such Act became effective April 1, 1953, approximately one year after the death of W. A. Graham and approximately one year before the entry of the final order and decree of distribution in the estate of W. A. Graham, deceased. By specific provisions therein such Act was made applicable to all gifts, whether made before or after the effective date of the Act except those which had already been delivered to the beneficiary thereof or testamentary gifts as to which a final judgment construing the will or a decree of distribution under the will involved had been entered prior to the effective date of the Act. Defendant's contention is, in brief, that the residuary estate of W. A. Graham, deceased, vested in the State of Oklahoma, the County of Mayes, and the City of Pryor, upon the death of W. A. Graham, and that the effect of the Act of 1953 above cited was to deprive such governmental entities of their property without due process of law in so far as the residuary estate of W. A. Graham, deceased, was concerned, and to that extent such Act is therefore unconstitutional.

The fallacy in such argument is, of course, that the County of Mayes, and the City of Pryor, are political subdivisions of the State and the constitutional provisions against laws which impair vested rights do not apply to such political subdivisions as against the State. City of Trenton v. State of New Jersey, 262 U.S. 182, 43 S.Ct. 534, 67 L.Ed. 937, 29 A.L.R. 1471; City of Pawhuska v. Pawhuska Oil & Gas Co., 250 U.S. 394, 39 S.Ct. 526, 63 L.Ed. 1054; City of Newark v. State of New Jersey, 262 U.S. 192, 43 S.Ct. 539, 67 L.Ed. 943; Williams v. Mayor and City Council of Baltimore, 289 U.S. 36, 53 S.Ct. 431, 77 L.Ed. 1015; City of Tulsa v. Oklahoma Natural Gas Co., D.C., 4 F.2d 399.

Furthermore, defendant Mitchell is in no position to raise such question. He does not contend that the Act in question deprives him of anything. It is well settled that this court will not pass upon the...